Dissenting opinion,
Me. Justice Mitchell,Feb. 6,1893:
I am unable to concur in this decision. If my difficulty was only on the facts I should not think it worth while to dissent, but as this is another step in the series that tends to fix the law of this state on what I cannot help regarding as a wrong basis I deem it proper to put my views briefly on record.
Trade-marks, whatever may have been the early view, are now mainly valuable, and they are immensely so, as means of advertisement and business identification. As a kind of property with this special element of value they are entitled to protection from the point of view of honest business, and equity has so regarded them for many years in England and most of the best courts in this country. Nor is the application of the principle confined to cases of trade-marks strictly so called. To be effective many things must be included in the protection, which are not trade-marks, nor individual property at all, except for the special and limited purpose to which they are applied. The rule was thus stated half a century ago by Lord Langdale, in Perry v. Truefitt, 6 Beavan, 66, a man is “ not to be allowed to use names, marks, letters or other indicia by which he may induce purchasers to believe that the goods which he is selling, are the manufactures of another person. I own it does not seem to me that a man can acquire property merely in a name or a mark; but whether he has or not a property in the name or mark I have no doubt that another person has not a right to use that name or mark for the purpose of deception, and in order to attract to himself that course of trade or that custom which without that improper act would have flowed to the person who first used, or was alone in the habit of using the particular name or mark.”
The true role I take to be that in cases of trade-mark proper, anything so similar as to be likely to deceive intending purchas*74ers, will be treated as an infringement, without reference to the purpose to deceive, or to whether the resemblance is intentional or accidental; but that where the imitation is with intent to acquire, wrongfully and in an underhand manner, a portion of another’s good will or business, equity will enjoin the attempt as a fraud, though the imitation be not of a legal trade-mark. And such intent may be gathered from imitation of name, descriptive words used, size or style of package, color or shape or mode of application of label, general appearance, or any circumstances which afford basis for the inference of an intent to copy, and where such intent is thus indicated, the actual resemblance need not be so close as to deceive any but the most careless buyers. It is enjoined not as a deception of the public likely to be successful, but as an attempt to defraud the plaintiff. Any rule short of this' is a premium on dishonesty, and an invitation to a commercial policy which measures its actions not by conscience or right, but by ingenuity in dodging the law.
The cases both English and American will be found cited in the admirable brief of the appellant in Putnam Nail Co. v. Dulaney, 140 Pa. 205, a case where the principle was conspicuously applicable, and where, under precisely similar facts with another defendant, it was actually applied by the circuit court of the United States in Nail Co. v. Bennett, 43 Federal Reporter, 800.
In the present case the learned master reports, “ That the label used by the defendants was suggested by that of the plaintiffs, the master cannot doubt.” That fact of itself was enough to support an injunction.